Ruling may open door to cruise line malpractice suits

MIAMI — Pasquale Vaglio, a retired New York City policeman and Korean War veteran, was on the cruise of a lifetime with 18 family members in the summer of 2001 aboard Royal Caribbean’s “Explorer of the Seas.” Then, the accident happened.

Vaglio, 82, fell and hit his head shortly after disembarking for a sightseeing trip in Bermuda. He was immediately taken to the ship’s medical unit, where a nurse did a cursory examination and said Vaglio should rest in his cabin. What she didn’t know – and a doctor wouldn’t discover until hours later – was that Vaglio had suffered a brain injury that would kill him within days.

For more than 100 years, people such as Vaglio’s survivors couldn’t win medical malpractice lawsuits against cruise lines because of exemptions created through a series of court decisions. The most recent is a 1988 ruling known as “Barbetta” that cruise companies such as Royal Caribbean and Carnival regularly relied upon to get malpractice lawsuits thrown out before trial. Courts said passengers should not expect the same level of medical care on a ship as on land, and ships’ doctors and nurses were private contractors beyond the cruise lines’ direct control.

Now, a federal appeals court considering the Vaglio case has ruled the exemption should no longer apply. A three-judge panel of the 11th U.S. Circuit Court of Appeals – which has jurisdiction over the major Florida-based cruise lines – recently decided Barbetta is outdated law.

The judges noted that the Royal Caribbean doctor and nurse wore cruise line uniforms, were presented as ship employees and that the onboard medical center was described glowingly in promotional materials. Some modern cruise ships, they noted, have sophisticated intensive care units, laboratories and the ability to do live video conference links with medical experts on shore.

“We can discern no sound reason in law to carve out a special exemption for all acts of onboard medical negligence,” Circuit Judge Stanley Marcus wrote in the decision. “Much has changed in the quarter-century since Barbetta.”

The family’s initial victory could affect many of the 21 million people who take cruises annually.

“What we didn’t realize until this happened was that they have zero liability,” said Pasquale’s son, Joseph Vaglio, a pharmacist who lives in Massapequa, New York. “There is no way they should be getting away with this. They are making money hand over fist. Part of their cost of doing business should be to have a competent medical staff.”

Royal Caribbean spokeswoman Cynthia Martinez said the cruise line rejects the Vaglios’ allegations of medical negligence. The company wants the full 11th Circuit to reconsider the three-judge panel’s ruling, contending there is no good reason to abandon a century of law.

“While cruise ships may have improved their medical facilities in the last 100 years, they should not be punished for it,” Royal Caribbean lawyers wrote in a Dec. 1 rehearing motion. “Royal Caribbean is not in the business of providing health care. It is in the business of providing vacations.”

According to the family’s lawsuit, after falling and hitting his head, Pasquale Vaglio was seen at the ship’s infirmary by a nurse, who noted a bump and scrape on his head. She neither conducted nor recommended a diagnostic scan, telling Vaglio’s wife to keep an eye on him because he might have a concussion.

Vaglio got steadily worse. After his daughter contacted ship personnel, it took 20 minutes to get a wheelchair to take him from their cabin back to the infirmary. Then there was another delay while credit card information was obtained. Finally, four hours after the accident and suffering from internal bleeding in his skull, Vaglio was examined by the ship’s doctor and sent to a hospital in Bermuda.

“By that time, Vaglio’s life was beyond saving,” the appeals judges wrote. He was airlifted to a hospital in Mineola, New York, where he died a week later.

It’s not clear whether the 11th Circuit will reconsider its ruling, which conflicts with other circuits’ decisions and could ultimately wind up in the U.S. Supreme Court.

Robert Peltz, a veteran Miami maritime lawyer, said if the decision stands, the key for medical malpractice lawsuits to succeed will be proving the cruise lines control their medical staffs, that they aren’t independent contractors.

There’s ample evidence of that control in the modern cruise industry. The Cruise Lines International Association, for example, requires members to have medical staff aboard all ships around the clock. The organization has developed guidelines and policies for cruise lines to maintain high-standard medical care, said spokeswoman Elinore Boeke.

“Cruise ships go to great lengths to keep passengers healthy and well,” she said.

Still, Royal Caribbean said it is unfair, for purposes of a lawsuit, to compare cruise ships to an onshore medical center with numerous specialists and access to lab work and test equipment.

“Cruise ships are still not floating hospitals,” their lawyers wrote.

For now, the 11th Circuit’s ruling would merely give Pasquale Vaglio’s relatives a chance to prove their claims that the “Explorer of the Seas” medical staff was negligent in his August 2011 death. Unless Royal Caribbean offers a settlement, the Vaglios will have to convince a Miami jury they deserve damages – but Joseph Vaglio said money isn’t the only motivation.

“They were getting away with this for a long time and it’s time for it to stop,” he said. “My dad was the nicest guy in the world. When he left early it was kind of weird. It took a lot of years away from me.”

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